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Category Archives: Ethics

The Portland Press Herald provides an update on the fallout from the actions of the former firm partner John Duncan.

Questions have lingered about the response to Duncan’s thefts within Verrill Dana, and whether other lawyers — most notably former managing partner David Warren — would be charged criminally or brought up for sanctions by the Maine Board of Bar Overseers. While it appears that no one other than Duncan will face criminal charges, the lead counsel for the Board of Bar Overseers has accused six Verrill Dana lawyers of breaking ethics rules.

After investigating the matter for nearly three years, J. Scott Davis recently filed a court complaint outlining the allegations against Warren and James Kilbreth III, who chaired Verrill Dana’s executive board in the summer of 2007. Davis also seeks unspecified sanctions against lawyers Eric Altholz, Mark Googins, Roger Clement Jr. and Juliet Browne, who served on the firm’s executive board at the time. Disciplinary hearings for all of the lawyers have been scheduled for Dec. 13 and 14 in District Court in Lewiston.

The Portland Press Herald reports on the latest in the fallout from former Verrill Dana attorney John Duncan’s massive theft from the firm’s clients. The state bar ethics board is trying to find out more about what and when the firm knew about Duncan’s actions, but the firm is claiming attorney-client privilege.

Libby eventually reached an agreement with Verrill Dana regarding his resignation. He pledged not to disclose the information he had gathered unless a court ordered him to do so. That’s exactly what Davis seeks. He issued a subpoena to Libby on Sept. 8, 2008. Davis wants Libby’s testimony and all of the documents. Verrill Dana filed a motion to quash the subpoena. The dispute went to Justice Warren Silver of the Maine Supreme Judicial Court. Silver reviewed the documents in his chambers, and he denied Verrill Dana’s motion. Silver ruled that no attorney-client privilege existed because Libby “may have uncovered criminal conduct by partners of Verrill Dana.

“Under federal and state law, communications between clients and lawyers are no longer protected if the purpose of the communications was to aid in the commission of a fraud or a crime, or to actively conceal past wrongdoing. Justice Silver ordered Libby to turn over the documents to Davis. But Verrill Dana appealed to the full state Supreme Court.

In the Oct. 27 decision, the majority of the justices felt that Silver did not include enough information in his order to support the disclosure of the documents. Justices Robert Clifford, Jon Levy, Andrew Mead and Ellen Gorman sent the case back to Silver for clarification. They essentially asked Silver to review the law again and to make sure that the documents obtained by Libby are exempt from attorney-client privilege. It is not known whether Silver has issued a second order, which will likely have a major impact on the course of Davis’ inquiry.

Seth Carey, who was suspended earlier in the year for another matter, was again sanctioned for conduct unbecoming a member of the bar.

The latest complaint lodged against Carey came from a woman who alleged he physically abused her German shepherd puppy at her home during an October visit last year. She said he was expressing his anger toward a prosecutor for the board who had been handling complaints brought by Maine lawyers and judges. Carey later refused to leave the woman’s home after being asked to. She described his behavior as “unhinged” and said she was wary about being in his presence.

Mainebiz has an article on the aftermath of John Duncan’s embezzlement. Two things still stick out: of course Duncan’s outrageous actions, but also the firm’s failure to take action for four months.

John Duncan is now in federal prison in Brooklyn, hundreds of miles from the state where his theft still raises hackles in part because it was so unusual and the retribution so public. Of the more than 4,869 lawyers licensed to practice in Maine, 13 were publicly sanctioned in 2007, according to the American Bar Association. As a percentage of lawyers licensed, Maine’s rate of public disciplinary action has historically been among the country’s lowest.

I find it hard to believe Mr. Clarke did not know his actions were a clear violation. Then to not bother looking it up, or contacting the Bar to find out? He seems to have gotten off easy.

The violations stem from Clark’s financial relationship with an elderly widow who suffered from multiple sclerosis when they first met. She later developed Alzheimer’s disease and a personality disorder, among various physical ailments.

According to Mead, the widow, Eugenie B. Landry, owned a “small but valuable oceanfront residence,” which, upon her death in 2005, was sold.

The estate, which Clark controlled — and under which he was named the beneficiary — received the net proceeds of $524,000 from the sale.

“Clark ultimately took $325,000 from the estate,” Mead wrote in his opinion, adding, “He used the money to cover his children’s tuition costs and to pay off his mortgage.”